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Make provision about the prosecution in Scotland of partnerships, partners |
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and others following dissolution or changes in membership. |
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Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and |
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consent of the Lords Spiritual and Temporal, and Commons, in this present |
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Parliament assembled, and by the authority of the same, as follows:— |
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Prosecution after dissolution |
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1 | Prosecution of dissolved partnership |
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(1) | This section and sections 2 and 3 apply where— |
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(a) | a partnership is dissolved, and |
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(b) | an offence is alleged to have been committed by the partnership before |
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(2) | The partnership may be prosecuted, or continue to be prosecuted, for the |
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offence as if it had not been dissolved. |
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(3) | But it is not competent to commence proceedings against the partnership by |
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virtue of subsection (2) if a period of more than 5 years has elapsed since the |
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partnership was dissolved. |
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(4) | For the purposes of subsection (3), proceedings are commenced on the date on |
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which an indictment or, as the case may be, a complaint is served on the |
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(5) | Subsection (3) is without prejudice to section 136 of the Criminal Procedure |
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(Scotland) Act 1995 (time limit for certain offences). |
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(6) | Where a partnership is convicted of an offence by virtue of subsection (2), any |
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enactment or rule of law relating to the liability of partners on the conviction |
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of a partnership applies as if the partnership had not been dissolved. |
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(7) | But subsection (6) is subject to section 3 (which disapplies provisions |
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restricting payment of fines to partnership assets). |
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2 | Dissolution of partnership: proceedings against former partner or other |
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(1) | A person, who could have been prosecuted for the offence committed by the |
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partnership had it not been dissolved, may be prosecuted, or may continue to |
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be prosecuted, despite the dissolution. |
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(2) | Subsection (1) applies irrespective of whether the partnership has been or is |
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prosecuted for the offence but not where the partnership has been so |
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prosecuted and acquitted. |
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(3) | In proceedings against a person by virtue of subsection (1), evidence led may |
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include evidence as to the commission of the offence by the partnership. |
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3 | Payment of fine where dissolved partnership convicted |
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An enactment, in so far as it restricts to payment out of a partnership’s assets |
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the payment of a fine imposed on the partnership on its conviction of an |
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offence, does not apply in the case of a partnership which has been dissolved. |
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Prosecution after change in membership |
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4 | Prosecution of partnership after change in membership |
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(1) | This section and section 5 apply where— |
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(a) | there is a change in the membership of a partnership, |
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(b) | the partnership continues to carry on business after the change, and |
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(c) | an offence is alleged to have been committed by the partnership before |
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(2) | The partnership may be prosecuted, or continue to be prosecuted, for the |
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(3) | For the purposes of this section and section 5, any enactment or rule of law, by |
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virtue of which a change in membership of a partnership results in a new |
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partnership being constituted, does not apply. |
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(4) | In this section and section 5, there is a change in the membership of a |
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(a) | a partner dies or, if not an individual, ceases to exist, |
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(b) | a partner resigns, retires or is expelled from the partnership, or |
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(c) | a person is admitted as a partner into the partnership. |
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5 | Change in membership of partnership: proceedings against partner or other |
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(1) | A person, who could have been prosecuted for the offence committed by the |
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partnership had there not been a change in membership, may be prosecuted, |
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or may continue to be prosecuted, for the offence despite the change in |
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(2) | Subsection (1) applies irrespective of whether the partnership has been or is |
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prosecuted for the offence but not where the partnership has been so |
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prosecuted and acquitted. |
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(3) | In proceedings against a person by virtue of subsection (1), evidence led may |
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include evidence as to the commission of the offence by the partnership. |
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General and miscellaneous |
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6 | Consequential amendments |
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(1) | The Partnership Act 1890 is amended as follows. |
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(2) | In section 38 (continuing authority of partners for purposes of winding up etc.), |
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after third “dissolution” insert “, and in relation to any prosecution of the |
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partnership by virtue of section 1 of the Partnerships (Prosecution) (Scotland) |
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(3) | The Criminal Procedure (Scotland) Act 1995 is amended as follows. |
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(4) | In section 70 (solemn proceedings against organisations), in subsection (2), |
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after paragraph (a) insert— |
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“(aa) | in the case of a partnership prosecuted by virtue of section 1 of |
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the Partnerships (Prosecution) (Scotland) Act 2013, the |
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dwelling-house or place of business of any of the partners,”. |
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(5) | In section 141 (summary proceedings: manner of citation), in subsection (2)— |
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(a) | in paragraph (b), after “body of trustees” insert “or a partnership |
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prosecuted by virtue of section 1 of the Partnerships (Prosecution) |
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(b) | omit the word “or” immediately after that paragraph, and |
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(c) | after paragraph (c) insert “or |
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(d) | where the accused is a partnership prosecuted by virtue |
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of section 1 of the Partnerships (Prosecution) (Scotland) |
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Act 2013, if the citation is left with any one of the |
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partners who is resident in Scotland;”. |
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(6) | The Secretary of State may by order made by statutory instrument make such |
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further amendments of any enactment as appear to the Secretary of State to be |
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necessary or expedient in consequence of this Act. |
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(7) | An order under subsection (6) may not be made unless a draft of the statutory |
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instrument containing it has been laid before and approved by a resolution of |
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each House of Parliament. |
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(8) | But an order under subsection (6) which does not contain provisions amending |
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any enactment contained in an Act or an Act of the Scottish Parliament is |
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subject to annulment in pursuance of a resolution of either House of |
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(a) | references to an offence, in relation to its commission or alleged |
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commission by a partnership, are references to an offence that the |
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partnership is, by virtue of an enactment or rule of law, capable of |
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committing separately from its partners, |
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(b) | “enactment” includes an enactment contained— |
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(i) | in subordinate legislation (within the meaning of the |
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Interpretation Act 1978), or |
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(ii) | in, or in an instrument made under, an Act of the Scottish |
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8 | Short title, commencement and extent |
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(1) | This Act may be cited as the Partnerships (Prosecution) (Scotland) Act 2013. |
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(2) | This Act comes into force on the day after the day on which this Act is passed. |
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(3) | This Act applies where the partnership is dissolved or there is a change in the |
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membership of the partnership on or after the day on which this Act comes into |
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(4) | This Act (other than section 3)— |
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(a) | applies irrespective of when the offence mentioned in section 1(1)(b) or |
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4(1)(c) is alleged to have been committed, |
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(b) | applies to any proceedings in relation to such an offence which are |
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ongoing on the day this Act comes into force as it applies in relation to |
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proceedings commenced after that day. |
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(5) | This Act extends only to Scotland. |
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(6) | But the amendment made by section 6(2), and any amendment made by an |
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order under section 6(6), has the same extent as the enactment (or the relevant |
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part of the enactment) to which it relates. |
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